| Interboro Ins. Co. v Johnson |
| 2014 NY Slip Op 08403 [123 AD3d 667] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| Interboro Insurance Company,Appellant, v Winston Johnson et al., Defendants, and Lenco DiagnosticLaboratory et al., Respondents. |
Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for appellant.
In an action, inter alia, for a judgment declaring that a policy of insurance issued bythe plaintiff to the defendant Winston Johnson does not cover claims for medical servicesprovided by the remaining defendants, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered January29, 2014, as denied that branch of its motion which was pursuant to CPLR 3215 forleave to enter judgment against the defendants Lenco Diagnostic Laboratory, NewMillennium Medical Imaging, P.C., and Sylvia Lobo, upon their failure to appear oranswer the complaint.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
A plaintiff's right to recover upon a defendant's default in answering is governed byCPLR 3215 (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d568, 572 [1978]), which requires that the plaintiff state a viable cause of action (seeCPLR 3215 [f]; Woodson v Mendon Leasing Corp., 100 NY2d 62, 71[2003]; Litvinskiy v MayEntertainment Group, Inc., 44 AD3d 627, 628 [2007]). In determining whetherthe plaintiff has a viable cause of action, the court may consider the complaint, affidavits,and affirmations submitted by the plaintiff (see Litvinskiy v May Entertainment Group, Inc., 44 AD3d627 [2007]; Fappiano vCity of New York, 5 AD3d 627, 629 [2004]).
Here, the plaintiff provided an automobile liability insurance policy to the defendantWinston Johnson. Johnson was allegedly involved in an automobile accident on March16, 2012, and sought medical services from the remaining defendants after the accident.The plaintiff commenced this action for a judgment declaring that those medical serviceswere not related to the accident, and thus were not covered by the policy.
Contrary to the plaintiff's contention, the proof submitted in support of its motionfailed to set forth sufficient facts to enable the Supreme Court to determine that themedical services provided to Johnson by the remaining defendants were unrelated to theautomobile accident (see McGeev Dunn, 75 AD3d 624 [2010]; Mount Sinai Hosp. v Triboro Coach, 263AD2d 11, 19-20 [1999]). Since the plaintiff failed to sustain its burden under CPLR3215 (f), the Supreme Court properly denied that branch of the plaintiff's motion whichwas for leave to enter a default judgment against the defendants Lenco DiagnosticLaboratory, New Millennium Medical Imaging, P.C., and Sylvia Lobo (see Williams v North Shore LIJHealth Sys., 119 AD3d 937, 938 [2014]; Mauro v Atlas Park, LLC, 99 AD3d 872 [2012]). Mastro,J.P., Chambers, Cohen and Barros, JJ., concur.